Discretion and denial

Britain is off the hook. After six years of negotiations, the European Union has failed in its attempt to foist on reluctant countries - Britain included - a law criminalising denial of the Holocaust. The fudge that emerged from Brussels last week was far less than its sponsors, especially Germany, had hoped.

Even where there was agreement on what ought to be a crime - broadly, inciting racial or ethnic hatred - the final EU compromise makes it evident that state authorities would be left with considerable discretion.

The ringing statement that "publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes" has to be made an offence in each EU state is followed by a sheepish concession that prosecutions could only succeed where such conduct is likely to incite hatred or violence.

Except in one aspect, it seems that the British government will not have to do much to make our laws conform to the EU demand. The Public Order Act 1986 and last year's Religious and Racial Hatred Act appear to cover everything.

The one exception is that the EU will require a mandatory minimum prison sentence on a convicted offender.

Parliament would not be happy to pass a law that limited a judge's discretion in that way.

The failure of the EU to come up with any worthwhile legal framework is not only a victory for freedom of expression. It also demonstrates that sensitive issues relating to wars and to targeted massacres do not easily fit into a pan-European framework.

Different countries and peoples suffered differently. It is right that national reactions should not be forced into a one-size-fits-all European straitjacket.

· The US Supreme Court's decision last week on a relatively minor abortion issue may turn out to have been one of the most significant moments in the moral and sexual history of American society. At stake was the "partial birth" method of abortion. The supreme court judges upheld a federal law banning the practice, but it was the fact of a 5-4 majority that has made the case so important.

For the first time, President George Bush's recent appointments to the court - Chief Justice Roberts and Justice Alito - have exposed their judicial feelings about abortion. These could easily lead to the eventual reversal of Roe v Wade [the 1973 decision of the Supreme Court] and the near-abolition of any right to abortion. Mr Bush still has 18 months in office. There is a reasonable chance that Justice Stevens, 87, will have to retire soon. His leaving (or that of any of the other three on the liberal wing) would mean that Mr Bush, in the dying days of his administration, would be able to determine the balance of the Supreme Court for decades to come. The 5-4 split would become a 6-3.